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The Death Knell of Tenure

One of the greatest barriers to education reform, and the symbol of public sector intransigence, is teacher tenure. These statutes make it nearly impossible and incredibly expensive to fire poorly performing teachers. But in a landmark victory for education reform, a California judge ruled that teacher tenure and a slew of other job protection clauses are unconstitutional and should not be enforced by school districts.

With the support of Students Matter, a student advocacy organization, nine students filed suit against the state of California in Vergara v California, arguing that employment protection clauses in the California Education Code that prevent bad teachers from being terminated threaten every student’s right to a quality education. Los Angeles Superior Court Judge Rolf Treu agreed in a tentative ruling with the students, stating “Substantial evidence presented makes it clear to this court that the challenged statutes disproportionately affect poor and/or minority students.” In the words of the judge, the evidence was not only clear, but “shocks the conscience.”

The judge’s decision overturned five statutes. The first was the Permanent Employment statute, or tenure. This provision forces school administrators to grant or deny teachers permanent employment, typically after only a few years on the job. For California, teachers only have to work for 18 months before being granted tenure. When five school districts in California were surveyed to see how many new teachers were granted tenure, 99 percent made the cut, raising serious questions about the review process. However, when fellow teachers were asked, 68 percent reported that many of their fellow tenured educators were unfit to teach.

The second statute that was struck down was the Last-In-First –Out (LIFO) provision. During times of tight budgets when schools are forced to lay off teachers, school districts are forced to give priority to teachers that have served the longest in their positions rather than those that have served the most effectively as educators. A study by the New Teacher Project found that only 13 percent to 16 percent of teachers that are let go in the current seniority system would also be let go if teacher quality was a consideration. The LIFO statute is particularly harmful to low-income and minority communities that have greater numbers of younger teachers and would face a greater chance of losing teachers to budget cuts.

The final three provisions are Dismissal statutes that are designed to make it nearly impossible to fire even the most incompetent and deplorable teachers. In order to fire a teacher, a school board must follow an array of legal steps that take years and hundreds of thousands of dollars to complete. Between 2000 and 2010, the Los Angeles School District spent $3.5 million to discharge only seven teachers, of which only four were successfully fired. When the cost of firing a single teacher is $500,000, is it any wonder that the state of California only terminated 91 teachers over the past ten years? For low-income communities with limited funds available for their schools, administrators often have to choose between investing in a complex legal process to dismiss poorly performing teachers and providing the needed resources for their students.

The defendants, the California Teachers Association and the California Federation of Teachers, said they intend to appeal judge Treu’s ruling. “We believe the judge fell victim to the anti-union, anti-teacher rhetoric and one of American’s finest corporate law firms that set out to scapegoat teachers for the real problems that exist in public education. There are real problems in our schools, but this decision in no way helps us move the ball forward,” said Joshua Pechthalt, the president of the California Federation of Teachers.

Contrary to the defendant’s claims, research from Harvard University has found that replacing a less competent teacher with even just an average teacher can raise a student’s lifetime earnings by $250,000 per class. The removal of these burdensome statutes will streamline the dismissal process and allow school districts to better allocate teachers that can best address the academic needs of their students.

Vergara V California will likely set a precedent for students and parents in other states looking to ease dismissal rules for ineffective teachers. California is just one of 14 states that make seniority the sole consideration for termination. Teacher performance, however, is the primary factor in teacher firings in only three states and the District of Columbia. We expect accountability from those that deliver every service we consume, from the food we eat to the cars we drive. It’s about time that this same accountability is brought to bear on those we entrust to educate our children.

As a public school teacher I welcome weeding out low performing teachers. I also support weeding out low performing principals, resource teachers and coaches. The public also needs to be concerned with the low quality of many district administrators. The Peter principle is alive and strong.
Teacher evaluations need to be designed to give meaningful feedback so teachers can improve. Evaluators need to be impartial, unbiased and knowledgeable instructors themselves. This is not always the case.
While poor teachers need to find new employment the evaluation process needs to protect good teachers from unethical, irrational or vindictive evaluators. A sound system of checks and balances needs to be developed or progress will not be achieved.

Last week, a federal judge issued a preliminary injunction halting the implementation of President Obama’s new overtime regulations. The regulations, previously scheduled to take effect on December 1st are a declaration of war on job flexibility and small employers, imposing new compliance costs and limiting employment arrangements in pursuit of big government social engineering. Given the large costs and dubious benefits, the Obama administration’s justifications for these massive, expensive, meddling regulations were always suspect as policy matter, but now a federal judge has agreed with the 21 states challenging the regulations and recognized them as probably illegal as well.

Yesterday, the US Court of Appeals for the DC Circuit officially ruled that the structure of the Consumer Financial Protection Bureau (CFPB) is unconstitutional, a criticism that has been leveled at the agency since its creation in 2010. The court found that so much unaccountable power was concentrated in the person of the director of the CFPB that it could not pass constitutional muster. Under the court’s ruling, the director now will be removable at will by the president, just like the head of any other agency. This represents an important blow for the system of separation of powers enshrined in the US Constitution.

American freight rail, while largely deregulated, is still overseen by the Surface Transportation Board (STB). This federal agency retains substantial power to regulate freight rail, powers that the STB normally deploys rarely. But these powers are seen by some as an opportunity to enlist the power of the federal government in business disputes, using government to extract rents to pad bottom lines. An example of this can be seen in the proposed “reciprocal switching” regulations from the STB. Unable to prove that prices that railroads are charging are unfair, some of their shipping customers have gone to the federal government to try to force lower prices through regulation, regulation which has been described as backdoor price controls.

On Tuesday, the Obama administration’s attempt to seize control of the nation’s energy infrastructure faced its latest day in court before the Court of Appeals for the D.C. Circuit. The so-called Clean Power Plan (CPP), which would more accurately be described as the Creating Poverty Plan for its increased energy costs that fall hardest on poor Americans, is the centerpiece of President Obama’s global warming agenda. It seeks to impose massive regulatory costs on the nation’s economy in order to supposedly prevent less than 0.02 degrees of temperature increase by 2100.

Last year the Fish and Wildlife Service announced that the greater sage grouse did not qualify for coverage under the Endangered Species Act (ESA),perhaps because the observed numbers of male grouse had increased by 63% from 2013-2015. This decision was met with relief across the western United States, where livelihoods were threatened with destruction by draconian ESA regulations. But regulators can never be content with not regulating, so last week the Department of Interior (DOI) announced new guidelines to restrict economic activity in the name of protecting the grouse.

There is an agency in Washington that spends over $7 billion per year and employs about 60,000 people nationwide, yet fails to do its one job 95% of the time when tested. Nearly half of the agency’s employees have received complaints for misconduct in the last three years. Private companies providing the identical services are 65% more efficient while costing taxpayers less money.

Have you noticed how the price of electronics and appliances like TVs, refrigerators, computers, or cell phones have been continuous declining as a result of technological progress, but the cost of new cars has been increasing? This is not some special quirk of the car market; it is the result of a deliberate policy by the federal government, prodded by radical environmentalists, to increase the cost of purchasing a new car. One of the chief mechanisms for this war on affordability are Corporate Average Fuel Economy (CAFE) mandates, which cost consumers tens of billions of dollars per year. Punishingly high CAFE standards have become a weapon of choice for radical leftists in their efforts to dictate how Americans must live.

On August 22, the comment period closed on the Consumer Financial Protection Bureau’s (CFPB) new proposed rule seeking to outlaw arbitration agreements for consumer financial products. Leading the opposition to the unnecessary and overreaching rule, FreedomWorks Foundation generated nearly 15,000 responses opposed to the rule.

An estimated 10-12 million customers in the United States use short-term loan products each year. These customers tend to be lower income, the type of people who often cannot afford bank accounts or other financial products offered by traditional financial institutions.